Book review: Fairness in Intellectual Property Law

Occasionally a book appears within the field of Intellectual Property Rights (IPR), which reflects upon broader issues instead of just commenting upon a certain sector of the law on IPRs and interpreting the same based on most recent court practice. This is certainly a welcome break in the flow of anthologies.

Fairness in Intellectual Property Law – Searching for a Uniform Concept, pp 1-466, Edward Elgar Publishing 2024 is such a book. It is no surprise that IP Kat last year nominated it the IP Book of the year. It is written by three excellent scholars, i.e. Professor Annette Kur, Max Planck Institute for Innovation and Competition (retired), Munich, Professor Nari Lee, Hanken School of Economics, Helsinki, and Professor Anna Tischner, Jagiellonian University, Krakow. Additionally, Vera Sevastianova, PhD student at Hanken, has assisted with the manuscript.

The authors note that although IP law is a strong tool for navigating the big changes in technology, communication and trade during the last decades it has been criticized that its property-oriented paradigm is unfit for novel situations and subject matter. According to the authors, as solutions have, among other things, been proposed a utilitarian evidence- based approach and one based on fundamental rights as appearing in the Universal Declaration of Human Rights. These are, however, not found satisfactory by the writers. One is over-emphasizing provable efficiency and the other over-exploiting human rights and thus devaluating them.

Here, fairness comes into the picture. It should, according to the authors, be promoted as a middle ground between the utilitarian and human rights schemes.

Having made their position clear the authors start on their extensive “trip” to map the concept of fairness within EU secondary and principles of primary law (Parts I and II), whereafter they continue by defining and measuring fairness using economics, distributive justice and moral perspectives (PART III). They then investigate procedural aspects by discussing a normative structure for fairness and issues concerning access to justice and fairness of sanctions (PART IV). The extensive exercise is concluded by studying the approach chosen in operation both among several parties (erga omnes), using design law as an example, and inter partes, and ending in an effort to operationalize fairness (PART V).

The authors conclude “[i]f the essence of what is said in this book were condensed into a single sentence, it would be that an IP system is fair if, in addition to pursuing the goal of public interest, (1) it provides a realistic chance, under equal conditions, for everyone to recoup and possibly profit from their material or mental investment in bringing forth new, protectable subject matter; and (2) it safeguards personal integrity and dignity.” To underline this statement, they also nail down that on the other hand “… unfairness is perceived where conduct by actors seeking to further their own profits appears to distort the groundwork of equal conditions, thus gaining more than they should, or when personal feelings are hurt” (p. 427).

These are, of course, rather general statements, but they are substantiated by the detailed walkthrough of fairness in EU unfair competition law, honest commercial practices in trademark law and honest practices in EU trade secrets and data law. Looking at the concepts of undistorted competition, fundamental freedoms and rights broadens the perspective.

The chapters 6 and 7 on economics, distributive justice and moral perspectives as well as the role of empirical evidence are most interesting, well written and balanced. It is easy to agree that basing the understanding of IPRs on just one approach is not providing an adequate picture of the rights.

The introduction comes with a reminder to the reader. It clearly states that it is a theoretical and academic exercise and not a treatise meant to give practical legal advice. It goes a step further, however, and limits itself in its academic effort to discuss various aspects of fairness in the light of the examples used, not offering a comprehensive doctrinal overview. This is unfortunate. The major effort spent on describing aspects of fairness in the various IPRs could have been partly reduced and replaced by concentrating on outlining and arguing for an explicit general doctrine of the same. This would have been very welcome. Maybe the authors could take this on as a second project having now undertaken the extensive groundwork?

Although not characterized as a treatise by the authors, the chapters on EU secondary law can also be read as excellent summaries of portions of unfair competition, trademarks, trade secrets and data law. This concerns certainly also the description on the digital acquis (pp. 281).

The book is thoroughly documented and equipped with an extensive index. The question arises, however, if the time is ripe to copy the American way of publishing the huge number of footnotes at the very end after the texts. This would simplify reading but might of course make flipping back and forth between pages cumbersome. To check all footnotes is, however, probably not necessary in order to follow the development of the main arguments.

An additional detailed list of contents would also have assisted the reading experience in addition to the useful introductory sections on the structure of the book and the chapter summaries.

The book at hand is clearly an important contribution to the IP literature. It more than fulfils the criteria put forward by the editors concerning the Elgar Monographs in Intellectual Property Law. It is a publication you will return to from time to time because it, among other things, stimulates your thinking on IPRs.

One question remains. How can the message of fairness be communicated to the EU decision makers, legislators and judges? The book is clearly too important to be left only with the academics. The courageous matter of bringing up feelings in connection with IP law is also worth conveying to the relevant parties.

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Main photo: Nari Lee